Constitutional Topic: The Bill of Rights

The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns The Bill of Rights. The Bill of Rights is
the common name for Amendments 1 through 9 (the 10th Amendment
is usually included under the heading of "Bill of Rights," since it was
ratified with the other nine, but it does not technically recognize any
rights).

Americans have been concerned with their rights for hundreds of years. The
right to practice religion however they wished was one of the primary reasons
the first settlers came to America from England. The right of representation
and self-determination was one of the primary reasons the Revolutionary War was
fought. The right for all persons to be free was one of the reasons the Civil
War was fought. American history is replete with bills of rights, from the most
famous included in our Constitution, to the Declaration of
Rights prompted by the Stamp Act to the Virginia
Declaration of Rights written by George Mason for his state. Even today we
speak of the apparently elusive Patient's Bill of Rights.

What is interesting to note is that when the Constitutional Convention finished its work, it
did not find it necessary to include a bill of rights in the final version.
Several members, notably George Mason, were very disappointed by this decision
and refused to sign the document over the issue. The argument was that the
Constitution did not give the new federal government the ability to restrict
inherent rights, so no list of those rights was necessary. Others worried that
if the rights were listed, they would invariably forget some and the list would
ever be incomplete. Finally, the argument was that the states each had their
own constitutions, too, and that rights were best protected at a state
level.

Of all the issues that the Anti-Federalists
gave for rejecting the new constitution, the lack of a bill of rights was the
most compelling for many people. In the ratifying documents of five states,
requests or demands for a bill of rights were included in the text, along with
suggested lists (see the ratifying documents of Massachusetts, South Carolina,
New Hampshire, Virginia,
and New York. Rhode Island
also included a list, but they ratified the Constitution after the first
Congress approved the Bill of Rights).

The Federalists were opposed to adding a bill of rights, expounding on the
reasons why in Alexander Hamilton's Federalist 84.
Among the reasons listed was a list of the personal protections the new
constitution did contain, such as the prohibition of ex post facto laws, the
inviolate habeas corpus, prohibition of a religious test to hold office, and
restrictions on a conviction of treason. Federalist 85 addressed the subject,
too, noting that amendment is always a possibility after ratification. It turns
out, once the process of ratification was complete, that this was exactly the
route taken.

The first Congress under the Constitution had a lot to accomplish. It had
many new powers not available to the Congress under the Articles of Confederation, and every state had
interests it wanted to protect. James Madison, seen by many as the father of
the Constitution, had won a seat in the House of Representatives, running
partly on a platform that included a fight for a bill of rights. This may seem
odd since Madison was one of those who advocated the omission of such a list of
rights, but he eventually became convinced of the necessity.

Madison tried to get the debate moving, but debate on tariffs and other
pressing issues always pushed the debate on a bill of rights to the back
burner. Madison finally had enough and on June 8, 1789, he presented his draft of a bill of rights to get the
discussion moving.

From June to September, both houses of Congress debated Madison's list,
along with the lists presented by the states. Rights were enumerated, removed,
modified, tweaked. Eventually, both houses agreed on twelve articles of amendment and sent them to the
states. Two years later, in 1791, the last ten of these original twelve were
ratified by the states and they became a part of the Constitution. By custom,
the amendments were added to the end of the original document, rather than
inserted in the text, as Madison had envisioned. All ten of the original
amendments are referred to as The Bill of Rights, though only the first nine
pertain to the people (Amendment 10 pertains to the states, though it mentions
the people in parallel).

Bar to Federal Action

The Bill of Rights was understood, at its ratification, to be a bar on the
actions of the federal government. Many people today find this to be an
incredible fact. The fact is, prior to incorporation, discussed below, the Bill
of Rights did not apply to the states. This is, however, quite in line with
what the Constitution was originally designed to be: a framework for the
federal government. In other words, though the federal government was banned
from violating the freedom of the press, states were free to regulate the
press. For the most part, this was not an issue, because the state
constitutions all had bills of rights, and many of the rights protected by the
states mirrored those in the federal Bill, and many went further than the
federal Bill.

This point is best illustrated by one of the amendments that Madison
proposed in his initial speech:

Fifthly, That in article 1st, section 10, between clauses 1 and 2,
be inserted this clause, to wit:

No State shall violate the equal rights of conscience, or the freedom of the
press, or the trial by jury in criminal cases.

This clause, seemingly innocuous to us today, was rejected by the Senate in
its final draft of the Bill, and the concept that any part of the Bill of
Rights would apply to the states was still 100 years away. Several cases that
came before the Supreme Court in the 19th century attempted to have the Court
establish that the Bill should apply to the states, to no avail:

In Barron v Baltimore (32 U.S. 243 [1833]), the Court ruled that the
Takings Clause of the 5th Amendment did not apply
to the City of Baltimore and the State of Maryland by extension. Succinctly,
the Court wrote: "...the fifth amendment must be understood as restraining the
power of the general government, not as applicable to the states."

In Pervear v Massachusetts (72 U.S. 475 [1866]), the Court was asked
to rule on fines imposed upon a liquor dealer by the state. Pervear was
licensed by the United States under the current internal revenue code to keep
and sell liquor. He was fined and sentenced to three months of hard labor for
not maintaining a state license for his liquor business. Part to the defense
attempted to invoke the 8th Amendment's Excessive
Fines and Cruel and Unusual Punishment clauses. The Court, again quite
succinctly, said: "Of this proposition it is enough to say that the article of
the Constitution relied upon in support of it does not apply to State but to
National legislation."

As to the Bill of Rights being a bar to federal acts, the Bill took some
knocks in the first years of the new nation. The 1798 Alien and Sedition Act,
for example, made nationals of countries the United States was at war with
subject to summary arrest, and also made "false, scandalous and malicious"
writings about the government a crime, with the burden of proof placed squarely
on the shoulders of the defendant rather than the state. Madison and Thomas
Jefferson were both adamantly opposed to the Act, and said that being
unconstitutional, states were free to ignore (or nullify) the law. The Act,
repealed in 1801, was never ruled unconstitutional.

One of the greatest changes in the interpretation of the Constitution came
with the passage of the 14th Amendment after the
conclusion of the Civil War. It was designed to assist newly freed slaves in
the transition to freedom and to protect them from acts of the Southern states,
and also to overturn the decision in the Dred Scott case that ruled that
persons of African descent could not be citizens of the United States even if
they were born in the United States. The amendment was successful in this
endeavor, legally, if not in reality.

But this sentence had and continues to have long-lasting implications on the
application of the Bill of Rights to the states:

No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
laws.

The "Due Process Clause" has been interpreted as applying the Bill of
Rights, which lists the rights (or privileges and immunities) of the citizens,
to the states. Known as "incorporation," the application of the Bill to the
states did not come all at once, nor is incorporation complete. Even today,
there are some parts of the Bill which have not been incorporated. The process
began unsuccessfully in the late 1800's and continued unsuccessfully right up
until the 1930's. In 1947, however, in Adamson v California (332 U.S. 46
[1947]), the Supreme Court began to accept the argument that the 14th Amendment
requires the states to follow the protections of the Bill of Rights. Historians
both agreed and disagreed with the Court's contention that the framers of the
14th Amendment intended incorporation since its passage ... but historians do
not sit on the Court. Their opinions were less important than those of the
Justices.

The process of selectively incorporating the clauses of the Bill of Rights
is agreed to have begun in Twining v. New Jersey (268 U.S. 652 [1925])
which contemplated the incorporation of some of the aspects of the 8th Amendment - not because they were a part of the
Bill of Rights but because they seemed to be fundamental to the concept of due process. This process of incorporating parts
of the Bill of Rights because of their connection to due process began to run
in parallel with the selective incorporation doctrine, where parts of the Bill
of Rights were ruled to be enforceable on the states by virtue of the 14th
Amendments, whether or not due process applied.

Thus in the early 1960's, the Establishment Clause, the right to counsel,
the rights of free speech, assembly, and petition, and the right against
unreasonable searches and seizures were quickly incorporated. Since the early
60's, almost every clause in the Bill of Rights has been incorporated (notable
exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of
the 5th Amendment, and the 7th Amendment).